Arthur G. Roberts and Richard Britton-Foster, Executors of the Estate of Elizabeth Ann Roberts v. Minister of National Revenue, [1971] CTC 668, 71 DTC 5430

HEALD, J.:—This is an appeal from an assessment against the estate of Elizabeth Ann Roberts wherein estate tax in the sum of $36,341.07 was assessed against the appellants as executors of the said estate.

The deceased was, on September 5, 1966, the date of her death, a married woman, the wife of Arthur G. Roberts, one of the appellants herein. The other appellant is a brother of the deceased. The deceased was 42 years of age at the time of her death. She and the appellant Roberts are the parents of four children ranging in age from 8 to 14 years at the time of their mother’s death. Mrs. Roberts had enjoyed good health until about February of 1966. She went into hospital in April of 1966 at which time her doctors concluded that she was the victim of a terminal disease. There was no evidence that this disease affected in any way her mental capacity or her ability to understand and execute documents and agreements so that her legal ability to execute the documents which she did in fact execute shortly before her death is not in issue.

On May 27, 1966 the deceased executed a general power of attorney in favour of Richard Britton-Foster, her brother, and Liselotte Britton-Foster, his wife. There was no evidence before me that this power of attorney was revoked at any time prior to her death on September 5, 1966. The appellant Roberts and the deceased were separated in September of 1965, at which time the appellant Roberts moved away from the marital home occupied by his wife and children. Mr. Roberts returned to live with his wife and children in July of 1966, and there remained until his - wife’s death.

The deceased was possessed of substantial assets in her own right. Arthur G. Roberts, her husband, testified that she owned a portfolio of investment securities, said portfolio having a market value of $324,484 at date of death. This value is admitted by both parties. Mrs. Roberts also owned the marital home and a ski cabin as well as other miscellaneous assets.

This appeal concerns only the above-mentioned investment portfolio.

Mr. Roberts testified that in the weeks immediately prior to her death he had many talks with his wife and much of their dialogue centred on the children’s future and on how Mrs. Roberts’ assets could best be utilized for the benefit of the children. As a result of these conversations and discussions it was decided to obtain advice from Mr. W. D. Goodman, Q.C., a Toronto solicitor. Accordingly Mr. Roberts first consulted Mr. Goodman on August 30, 1966, when Mr. Goodman recommended a specific program and course of action concerning Mrs. Roberts’ investment portfolio. During the afternoon of August 31, 1966 Mr. Roberts discussed Mr. Goodman’s proposal in detail with his wife at their home. During the evening of August 31, 1966 Mr. Goodman came to the Roberts home at 55 Castle Frank Road, Toronto, and explained to Mr. and Mrs. Roberts the various steps and procedures implicit in the proposed plan. The Roberts decided to accept Mr. Goodman’s advice and to proceed with the program suggested by him. Accordingly during that meeting Mrs. Roberts signed a letter of instructions to her brother Richard Britton-Foster, the said letter of instructions being received in evidence as Exhibit P.2. In that letter Mrs. Roberts informed her brother that she intended to sell her investment portfolio to a company known as Lillooet Investments Limited (hereinafter referred to as Lillooet) in return for 200 common shares without par value of the capital stock of that company representing all the issued shares in that company at that time; that she wished to gift the said shares to her said brother and her husband as trustees of the Elizabeth Ann Roberts Family Trust. Additionally the letter directed her brother to utilize his power of attorney from her to execute all documents in her name that might be necessary to effect the said sale of her securities to Lillooet and to transfer the said 200 shares of Lillooet to her brother and husband in their capacity as trustees of the Elizabeth Ann Roberts Family Trust.

At that same meeting the evening of August 31, 1966, at the Roberts home, Mrs. Roberts also signed the agreement dated August 31, 1966 between herself and Lillooet covering the sale of her investment portfolio of ‘‘blue chip stocks’’ and bonds worth $324,484 to Lillooet in return for the 200 no par value common shares of Lillooet (the said agreement was received in evidence as Exhibit P.3). Mrs. Roberts also executed the said Elizabeth Ann Roberts Family Trust dated August 31, 1966 at the same meeting with Mr. Goodman on the evening of August 31, 1966. This document was received in evidence as Exhibit P.4. This is a very lengthy document. Briefly described, it purported to settle the 200 shares of Lillooet on Arthur George Roberts (husband) and Richard Britton-Foster (brother) to hold upon certain trusts for the benefit of the Roberts children and issue.

Mr. Roberts’ evidence at trial was that Exhibits P.2, P.3 and P.4 were signed by his wife at the meeting with Mr. Goodman on the evening of August 31, 1966 at their home 55 Castle Frank Road. This evidence is not contradicted by any other evidence and conforms to the answers he gave on examination for discovery. I accordingly find as a fact that Elizabeth Ann Roberts signed and executed Exhibits P.2, P.3 and P.4 during the evening of August 31, 1966 at 55 Castle Frank Road, Toronto. However, considerable further documentation forms an integral part of this program (which for convenience I will describe as the Goodman plan) and is principally contained in Exhibit P.5 which consists of pages numbered 1 to 36, being resolutions and minutes of the shareholders and directors of Lillooet. The dates on which these resolutions and minutes were signed is not so clear and is in issue. For the moment in referring to these minutes I will refer to the date which appears in them and will have more to say later on concerning the date on which they were actually signed.

Lillooet Investments Limited was duly issued a charter by letters patent from the Provincial Secretary of the Province of Ontario dated May 6, 1966 under the authority granted to him by The Corporations Act of Ontario. The authorized capital of the company consisted of: 2,000 common shares without par value (the charter provided maximum consideration of $2,000) ; 2,000 Class A preference shares par value $1 each ; 34,000 Class B non-voting preference shares par value $1 each; 2,000 Class C non-voting preference shares par value $1 each. No evidence was adduced of any dealings with any of the preference shares. Thus all the relevant share transactions are transactions having to do with the common shares without par value. The incorporators of the company were Herbert A. Abramson, Sol Shulman and Allen Karp, all solicitors of the City of Toronto and all members of Mr. Goodman’s firm at that time. After incorporation the following steps were taken as appears from a perusal of Exhibit P.5. I have set them out chronologically as they appear in Exhibit P.5.

Step 1. The transfer of one share each by the incorporators to the appellant Roberts, the appellant Britton-Foster and Mrs. Britton-Foster, the said three transferees being elected directors of the company with the appellant Roberts being elected president and the appellant Britton-Foster being elected secretary-treasurer. The minutes evidencing this step bear date May 6, 1966.

Step 2. The company directors passed a resolution providing for an increase from $2,000 to $350,000 as the maximum consideration for the issue of the 2,000 common shares and further resolved that the necessary steps be taken to pay the fee on such greater amount and to request the Provincial Secretary to issue a certificate that such fee has been paid. The minutes evidencing this step bear date May 6, 1966.

Step 3. The three shareholders, that is the appellant Roberts, the appellant Britton-Foster and Mrs. Britton-Foster each executed declarations of trust wherein each of them declared that he or she held their one share of Lillooet in trust for Elizabeth Ann Roberts. These declarations of trust each bear date August 31, 1966.

Step 4. The company directors passed a resolution authorizing the purchase of the investment portfolio of the deceased worth $324,484 in consideration of the allotment and issue of 200 common shares of the company and authorized the president and secretary-treasurer to execute the said agreement on behalf of the company. This is the agreement for sale received in evidence as Exhibit P.3. This resolution bears date August 31, 1966.

Step 5. The company directors passed a resolution providing for the allotment and issue of a further 197 common shares of the company to Elizabeth Ann Roberts and also fixed the consideration for the said allotment and issue as $324,481. This resolution bears date August 31, 1966.

Step 6. Elizabeth Ann Roberts transferred by way of gift to the appellant Roberts and the appellant Britton-Foster as trustees of the Elizabeth Ann Roberts Family Trust the said 197 common shares of Lillooet. This transfer bears date August

31. 1966.

Step 7. Step 7 is a separate declaration of trust of each of Messrs. Roberts and Britton-Foster and Mrs. Britton-Foster wherein each of them declared that they held one common share of Lillooet in trust for the appellant Roberts and the appellant Britton-Foster as trustees of the Elizabeth Ann Roberts Family Trust. The declarations of trust in Step 7 bear date August 31, 1966.

Step 8. The company directors passed a resolution under which each of the existing shareholders were given the right to subscribe for and have issued nine common shares at ten cents per share for each common share presently held. The appellants Roberts and Britton-Foster in their capacity as trustees of the Elizabeth Ann Roberts Family Trust were thus allotted and issued 1,800 common shares at a price of 10 cents per share. This allotment and issue was based on the assumption that the said appellants as trustees of the Elizabeth Ann Roberts Family Trust were the owners of all the previously issued 200 shares.

To summarize, on August 30, 1966, Elizabeth Ann Roberts owned an investment portfolio with a market value of $324,484. Had she died on August 30, 1966 this sum would have been included in the aggregate net value of her estate for estate tax purposes. However, on August 31, 1966 the Goodman plan outlined above was implemented. The appellants submit that the implementation of this plan has the following result :

(a) The three original incorporators’ shares belonged beneficially to Elizabeth Ann Roberts who gifted them to the Elizabeth Ann Roberts Family Trust before her death.

(b) Under the sale agreement Elizabeth Ann Roberts was entitled to receive 197 additional common shares of Lillooet which she also gifted to the trust before her death.

(c) In the result Elizabeth Ann Roberts had disposed of her entire interest in Lillooet before her death.

(d) The directors of Lillooet validly issued 1,800 additional common shares at 10 cents per share.

(e) At September 5, 1966, the date of Mrs. Roberts’ death, there were 2,000 validly issued common shares of Lillooet. The 200 shares which Mrs. Roberts had gifted represented only 10% of the net worth of the company. Therefore appellants argue that only 10% of the value of $324,484 or $32,448 should be included in the aggregate net value of the estate. The respondent assessed the estate on the basis of the full market value of $324,484 and this appeal is from that assessment.

I found as a fact supra that Elizabeth Ann Roberts signed and executed Exhibits P.2, P.3 and P.4 during the evening of August 31, 1966 at her home 55 Castle Frank Road, Toronto. I also said that the date of execution of the further documentation forming an integral part of this plan was not so clear and was in issue notwithstanding the dates appearing on them.

Lillooet Investments Limited was incorporated on May 6, 1966 by Messrs. Abramson, Shulman and Karp but did not become an active company while they were its sole shareholders. Mr. Roberts says it was what is known as a “‘shelf’’ company; in other words an existing company with full legal status but on the “shelf” in the sense of not being actively engaged in a business of any kind. His evidence was that because a private corporation was essential to the implementation of the plan recommended by Mr. Goodman and because this company was available, it was decided to purchase all of the shares of Lillooet presumably to save the time and possibly some of the costs involved in incorporating a new company. This explains why pages 1 to 9 of Exhibit P.5 are dated May 6, 1966. These resolutions were obviously prepared at the time of incorporation on May 6, 1966. The names of Messrs. Roberts and Britton-Foster and Mrs. Britton-Foster were inserted much later because the decision to purchase the shares of this company was not taken until August 31. There was no evidence as to whether the incorporators signed the resolutions on May 6 or at some subsequent date but in my view the date of signing by the incorporators is not crucial to the decision in this case. However, all of the other resolutions, minutes, declarations and documentation contained in pages 10 to 36 inclusive of Exhibit P.5 are dated August 31, 1966.

In their pleadings the appellants state that all of the pertinent share transactions in Lillooet occurred on August 31, 1966. I refer to paragraphs 2, 3 and 4 of the notice of appeal in this regard. This is confirmed by the appellant Roberts in his examination for discovery. See lines 24 to 30, page 10; lines 1 to 5, page 11; lines 22 to 30, page 15; lines 1 to 20, page 16; lines 28 to 30, page 17 ; lines 1 to 5, page 18 ; lines 16 to 24, page 18 ; lines 22 to 30, page 19; lines 1 to 15, page 20; lines 23 to 25, page 20.

Additionally, Mr. Goodman’s firm wrote a letter bearing date of October 14, 1966 to the appellants which can best be described as a reporting letter. The letter under the signature of Richard

W. J. Posluns, a member of Mr. Goodman’s law firm is some 10 pages in length and reports in detail the various steps under- taken and completed under the Goodman plan. On page 9 of the letter Mr. Posluns says :

“Naturally it is most essential that any estate tax and succession duty returns and any correspondence with the respective departments be accurate in describing the estate planning procedures which we have implemented and which are reported to you in this letter.”

Mr. Posluns wrote this letter when the various steps and meetings were still fresh in his mind. He realized that accuracy was essential in reporting this plan and every step in it to the Department because he was well aware that the Department would scrutinize the plan very closely having regard to its result which was to substantially reduce the amount of estate tax payable in Mrs. Roberts’ estate.

On page 4 of this reporting letter Mr. Posluns says:

‘On the 313?? day of August 1966, the directors passed a resolution of the company allotting and issuing a further 197 common shares without par value for the sum of $324,481 to Elizabeth Ann Roberts, representing the purchase price payable in respect of the purchase by the company from Mrs. Roberts of certain shares. . . . On the same day a resolution was passed by the board of directors approving the transfer of 197 common shares in the capital of the company from Elizabeth Ann Roberts to Arthur George Roberts and Richard Britton-Foster, trustees of the Elizabeth Ann Roberts Family Trust. . . . At a meeting of the board of directors of the company held on the 31316 day of August 1966, at the hour of 4 o’clock in the afternoon a resolution was passed giving the right to each of the present shareholders of the company to subscribe for and to be issued nine common shares in the capital of the company at ten cents per share for each common share presently held by each shareholder. . . . As mentioned above, the directors of the company passed a resolution approving the purchase of the securities and the form of agreement of purchase and sale on the 31st day of August 1966.” (The italics are mine.)

Nevertheless the appellant Arthur G. Roberts in his evidence at trial swore that all of the Lillooet resolutions and minutes signed by himself, the appellant Brittno-Foster and Mrs. Britton- Foster were signed not on August 31 but in Mr. Goodman’s office on the morning of September 1, 1966. He admits that he and Mr. Britton-Foster did meet with Mr. Goodman in Mr. Goodman’s office on the afternoon of August 31 from about 3.30 p.m. until about 5 p.m., that Mr. Posluns was also present at this meeting but denies that this meeting or any portion of it was the meeting of the directors described on pages 30 and 31 of Exhibit P.5 as taking place at 4 p.m. on August 31, 1966. (This was the meeting which declared the stock rights of nine to one. ) toberts’ only explanation of this direct conflict between his evidence at trial and his evidence on examination for discovery was that because all of the resolutions and documentation were dated August 31, that he assumed they were actually signed and the meetings actually held on August 31; that between the examination for discovery and the date of trial he discovered his error and was now correcting his testimony. I do not accept this explanation. On the one hand the notice of appeal gives the pertinent dates as August 31 ; Roberts in his examination for discovery swears the pertinent dates as August 31 ; Mr. Posluns in his reporting letter of October 14, 1966 to the appellants, after stressing to his clients the need for accuracy and full disclosure, also gives the pertinent date as August 31; on the other hand the evidence of the appellant Roberts at trial that he was previously in error and (a necessary inference from his evidence) that the pleadings were in error and Mr. Posluns was in error. Counsel for the respondent quite properly pointed out at trial that no effort was made to explain this discrepancy. No attempt was made to corroborate Roberts’ evidence at trial— for example—a docket entry or diary entry from the Goodman office. Messrs. Britton-Foster, Goodman and Posluns were present when the documentation was signed and the meetings were held. It would have been a simple matter to have one or the other of them give evidence on this very important part of the case. I do not accept Mr. Roberts’ evidence at trial on this point. Accordingly I find as a fact that all of the resolutions, declarations, minutes and documentation signed by the appellants and Mrs. Britton-Foster as contained in Exhibit P.5 were in fact signed and executed by them on August 31, 1966. I find further as a fact that the directors’ meeting recorded as held on August 31 at 4 p.m. was in fact held on that date and at that hour and transacted the business as reported by the minutes thereof which are contained on pages 30 to 32 inclusive of Exhibit P.5.

The letters patent of Lillooet provide that the 2,000 common shares without par value shall not be issued for a consideration exceeding two thousand dollars “or such greater amount as the Board of Directors of the Company deems expedient on payment to the Treasurer of Ontario of the fees payable on such greater amount and on the issuance by the Provincial Secretary of a certificate of such payment’’. (The italics are mine.)

Such a provision in the letters patent is permitted pursuant to the provisions of Section 26(4) of The Corporations Act (Ontario) (R.S.O. 1970, c. 89).* [1]

The directors of Lillooet proceeded pursuant to this provision of the letters patent and accordingly passed a resolution increasing the maximum consideration from $2,000 to $350,000 for the issuance of the 2,000 common shares without par value. This minute is dated May 6, 1966, but I held (swpra) that it was signed by the directors on August 31, 1966. Then on September 1, 1966 a letter was written by Mr. Posluns of the Goodman firm (Exhibit D.4) and delivered to the office of the Provincial Secretary the same day, enclosing a certified copy of the said resolution and a cheque for the Treasurer’s necessary additional fees and requesting the Provincial Secretary to issue the certificate of such payment.

The evidence of Mr. McCormack, the Controller of Records in the Ontario Companies Branch, was to the effect that the Provincial Secretary signed the Certificate of Payment of Fees (Exhibit P.6) on September 15, 1966, and that it was sent out to the Goodman office on September 16, 1966.

The Lillooet letters patent clearly state that the common shares can only be issued for an increased consideration on payment to the Treasurer of the increased fees and on the issuance of the certificate by the Provincial Secretary. (The italics are mine.) The wording of the letters patent make it clear that these two steps are conditions precedent to the issuance of common shares for an increased consideration. In the case at bar, step 1 occurred on September 1, 1966, but step 2 did not occur until September 15, 1966. It should also be observed that Section 26(4) of The Corporations Act (Ontario) which permits this type of procedure to be included in letters patent uses identical language and it is thus equally clear that the two above-noted steps are conditions precedent in the governing statute.

I would also like to refer to the agreement for sale between Elizabeth Ann Roberts and Lillooet. Paragraph 7 thereof states:

“Without restricting the generality of the foregoing, it is expressly understood between the Parties hereto that the Purchaser shall forthwith take such steps as are necessary to enable the common shares to be issued for an aggregate consideration equal to the purchase price hereunder and that forthwith upon receiving the required certificate from the Provincial Secretary of the Province of Ontario entitling the Purchaser to issue the said shares for the said consideration, it will cause the common shares to be issued to the Vendor in accordance with the terms of this Agreement.”

(The italics are mine.)

It is clear from paragraph 7 that the shares to be issued to Mrs. Roberts could not possibly be legally issued any earlier than September 16, 1966, the date on which the Provincial Secretary’s certificate was sent out to the Goodman office.

I think it is also significant that Mr. Posluns in his reporting letter to the appellants (Exhibit D.5) states on page 6 thereof:

“A Certificate of Payment has been obtained dated the 1st day of September, 1966, and the common shares of the Company may now be issued for a consideration not in excess of $350,000.”

(The italics are mine.) It will be recalled that this letter was written on October 14, 1966.

The appellants submit that all of the steps necessary to complete the Goodman plan were completed prior to September 5, 1966, the time of death. I cannot agree. In my opinion, the allotment and issue of the further 197 shares to Elizabeth Ann Roberts was inoperative prior to September 5, 1966 because no authority to allot and issue was issued until September 15, 1966.

I have read the judgment of my brother Cattanach, J. in Oakfield Developments (Toronto) Ltd. v. M.N.R., [1969] 2 Ex. C.R. 149; [1969] C.T.C. 219. In that case Cattanach, J. held that the Minister was not precluded from establishing that supplementary letters patent bore a date antecedent to their actual issuance. There the supplementary letters patent authorizing the issue of preference shares were dated December 20, 1960 but they were not in fact issued until February 15, 1961. It followed that no preference shares were validly issued on December 21, 1960 as the company’s capital stock did not include such stock at that time. The decision of Cattanach, J. was appealed to the Supreme Court of Canada. The judgment of the Supreme Court was delivered by Mr. Justice Judson ( [1971] C.T.C. 283).

The appeal was dismissed on other grounds and the rationale of Cattanach, J. was not dealt with by the Supreme Court.

I agree with the reasoning of my brother Cattanach, J. in the Oakfield case and in the ease of The Deltona Corporation v. M.N.R., [1971] C.T.C. 297 at 323.

In the case at bar the facts are, in my opinion, even stronger than in the Oakfield case (supra). Here, the purported issue of the additional 197 shares to Mrs. Roberts took place on August 31, 1966—the subsequent gift to the trust of the 200 common shares and the directors’ meeting allotting and issuing the 1,800 common shares—all took place on August 31, 1966, one day before the date of issue of the Provincial Secretary’s certificate. Putting the appellants’ case at its highest and disregarding the Oakfield and Deltona cases, the appellants’ right to transfer the 200 shares and to issue the additional 1,800 shares dates from September 1, 1966, and yet all of these steps occurred on August 31, 1966.

It follows therefore that at September 5, 1966, the date of death, the transfer and disposition of Mrs. Roberts’ investment portfolio had not taken place and said portfolio was properly included by the Minister in computing the aggregate net value of her estate.

I was invited by counsel for the respondent, if I found that the Goodman plan was completed, to find further that there was here in form and in substance an interrelated and interconnected series of transactions, wherein the deceased’s investment portfolio was transferred to a corporation controlled by the deceased at the time of transfer in consideration for the allotment and issue of all its issued share capital to trustees to hold on trust for the transferor’s children and that these transactions are, therefore, in form and substance a disposition operating as an immediate gift inter vivos and accordingly the full market value of the securities must be included in the aggregate net value of the estate pursuant to Section 3(1) (ec) of the Estate Tax Act.* [2]

Having found that the Goodman plan was not completed and that the transfer and disposition of Mrs. Roberts’ investment portfolio had not taken place before her death it is unnecessary for me to deal with this submission. However, I have no hesitation in expressing the opinion that, when you look at the program, the plan and at all of the evidence, there would have been a disposition of the marketable securities which would have operated by way of gift within the meaning of Section 3(1)(e) if the plan had been completed. It seems to be well settled in tax cases that the substance, rather than the form be regarded and also that the intention with which a transaction is entered into is an important matter and the whole sum of the relevant circumstances must be taken into account.t [3]

I believe that the plan implemented in this case was merely the machinery used to effect a gift of the investment portfolio for the benefit of the children and that, accordingly, the decision of the Supreme Court in M.N.R. v. H. Cox Estate, [1971] C.T.C. 227, Judson, J. at 229, applies to this case as well.

Counsel for the appellants relied heavily on the case of Attorney General v. Oldham, [1940] 1 K.B. 595 at 606, 607, 608; affirmed [1940] 2 K.B. 485. In that case one Tate, in January 1934, gave to his daughter Mrs. Oldham, the defendant, 25,000 ordinary shares in a company. In May 1935 the company increased its capital by the issue to its ordinary shareholders of bonus shares, fully paid out of the company’s general reserve, in the ratio of two bonus shares for every five existing shares which resulted in the defendant receiving 10,000 bonus shares. Tate died in April 1936 and the Crown claimed estate duty on the value of the 10,000 bonus shares as well as on the 25,000 original shares. (The defendant admitted that duty was chargeable on the original 25,000 shares because it was a voluntary disposition made by Tate less than three years before his death. )

Mr. Justice Wrottesley held that the bonus shares were not property passing under the disposition made by Tate and, therefore, estate duty was not chargeable on their value.

I would observe that while the operative words in the governing English statute in the Oldham case are similar to the wording of Section 3(1) (c) of our statute, there is no definition of disposition” in the English statute. ‘‘Disposition’’ is defined in our statute by Section 58(1)(e) thereof.* [4] The Oldham facts are entirely different from the case at bar and the relevant statute is significantly different. I am therefore of the opinion that the Oldham ease cannot be applied to this case. It is interesting, however, to read on page 606 of the Oldham judgment the following statement of the law by the learned Justice:

If what is contended for is that the Court must not close its eyes to what a transaction really provides, should that be different from what the form of the transaction appears to provide, there is no doubt that that is the duty of the Court.”

This statement of the law by Wrottesley, J. is not at variance in any way with the West Hill decision or the Cox decision earlier referred to.

After a careful consideration of the provisions of Sections 3(1)(c) and 58(1) (e) of the Estate Tax Act I have concluded that the plan herein is clearly a disposition of securities within the ordinary meaning of the word “disposition” and within the extended meaning set out in Section 58(1) (e).

I have read the English eases cited by counsel for the respondent on the proper interpretation to be given this word in their taxing statutes and am of the opinion that the plan in the case at bar would most certainly be ‘‘a disposition’’ within the meaning of those cases. See Duke of Northumberland v. Attorney General, [1905] A.C. 406, per Lord Macnaghten at 410-412; Parr v. Attorney General, [1926] A.C. 239, per Lord Carson at 267, 268; Grey v. Inland Revenue Commissioners, [1959] 3 All E.R. 603, H.L. per Viscount Simonds at 605.

The appeal is dismissed with costs.